State v. Sanchez

627 P.2d 698, 128 Ariz. 547, 1980 Ariz. App. LEXIS 716
CourtCourt of Appeals of Arizona
DecidedMay 28, 1980
Docket2 CA-CR 1840
StatusPublished
Cited by5 cases

This text of 627 P.2d 698 (State v. Sanchez) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sanchez, 627 P.2d 698, 128 Ariz. 547, 1980 Ariz. App. LEXIS 716 (Ark. Ct. App. 1980).

Opinions

OPINION

HATHAWAY, Chief Judge.

The sole issue raised in this appeal is whether the “knock and announce” requirements of A.R.S. Sec. 13-3916(B) are violated when police officers, in executing a search warrant, cut a locked gate in a fenced residential front yard without announcing their identity and purpose.

Police officers received information from a citizen informant, who wished to remain anonymous, that a large quantity of marijuana was in a house in Tucson. The officers located the house from the informant’s description and began surveillance. The house was surrounded by a chain link fence with a locked gate. The officers observed that the gate was always kept locked and that anyone desiring to gain admittance had to wait for someone from the house to [548]*548open the gate. After a day and a half of surveillance, the officers obtained a search warrant. In their planning prior to executing the warrant, the officers decided to cut the lock on the gate with bolt cutters. In executing the warrant, the lock was cut and the officers, none of whom were uniformed police officers, entered the yard without announcing their identity or purpose. Defendants/appellees moved to suppress the marijuana seized in the house on the ground that the officers violated A.R.S. Sec. 13-3916(B) when they cut the lock and entered the yard without announcing their identity or purpose. The trial court granted the motion and we affirm.

The statute in question states:

“B. An officer may break into a building, premises, or vehicle or any part thereof, to execute the warrant when:
1. After notice of his authority and purpose, he receives no response within a reasonable time.
2. After notice of his authority and purpose, he is refused admittance.”

At the suppression hearing, the state conceded that the officers did not comply with the statute before cutting the locked gate and entering the yard. The state maintains that compliance with the statute was not required because the gate was not part of the premises.

When construing the language in a statute, the rules of construction require that a court examine the context, subject matter, effects, consequences and the spirit and reason of the law. Castregon v. Huerta, 119 Ariz. 343, 580 P.2d 1197 (1978). In addition, particular words in a statute must be construed in conjunction with the full text of the statute. Golder v. Department of Revenue, State Board of Tax Appeals, 123 Ariz. 260, 599 P.2d 216 (1979).

We first note that A.R.S. Sec. 13-1446(B), the predecessor statute to A.R.S. Sec. 13-3916(B), limited the knock and announce requirement to inner and outer doors of houses. In 1970, the legislature changed the statute to read “building, premises, or vehicle.” It is presumed when the legislature changes the language of a statute that it intended to make a change in existing law. McCloe v. Utah Home Fire Insurance Company, 121 Ariz. 402, 590 P.2d 941 (App.1978). By changing the statute therefore, it would appear the legislature intended to expand the knock and announce requirement beyond doors to houses.

The Arizona Supreme Court in defining “premises” in the context of a search warrant has stated that it may include property that is a logical part of the residential premises. In re One 1970 Ford Van, I.D. No. 14GHJ55174, L. No. CB 4030, 111 Ariz. 522, 533 P.2d 1157 (1975). This court in State v. Caldwell, 20 Ariz.App. 331, 512 P.2d 863 (1973), stated:

“A search of premises, however, may include all property necessarily a part of the premises and so inseparable as to constitute a portion thereof.” 20 Ariz.App. at 334, 512 P.2d 863.

There we held that an area immediately behind a dwelling was a part of the premises.

It is clear, therefore, that the term premises as used in A.R.S. Sec. 13-3916(B) encompasses more than just a residence and can, depending on the circumstances, include a locked gate in a fence surrounding a residence.1 Where the fence and gate are so far removed from the residence that the occupants could not reasonably be expected to hear the announcement, the officers would be required to knock and announce at the residence. This is analogous to the outer door of an apartment building being far distant from the door of the particular apartment to be searched. U.S. v. Murrie, 534 F.2d 695 (6th Cir. 1976). Here, how[549]*549ever, the record indicates that no attempt at all was made by the officers to announce their presence and purpose at the locked gate.2 In fact, as noted above, during the planning for execution of the warrant, no consideration was ever given to making an announcement at the gate. The state presented no evidence to show that it would have been a futile gesture to knock and announce at the locked gate because the gate was too far away from the residence for the occupants to have heard the announcement. It must also be noted that the gate was always kept locked. This indicates that the occupants of the house had a “reasonable expectation of privacy” in their front yard an expectation that society would accept as reasonable. Katz v. U.S., 389 U.S. 347, 83 S.Ct. 507, 19 L.Ed.2d 576 (1967).3

The state next claims that even if the locked front gate is part of the premises, exigent circumstances existed which would excuse non-compliance with the statute. It cites cases from other jurisdictions for this proposition but no authority from Arizona. In fact, the authority in this state is contrary to the state’s position. State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330 (1974). In State v. Eminowicz, the court stated:

“Where the legislature has enacted a statute dealing with execution of a search warrant which is clear and unambiguous on its face, we as a court may not weigh the reasons for and against such a statute — that is the province of the legislature. We are aware of other states with statutes similar to A.R.S. Sec. 13-1446 which have made judicial exceptions to their statutes. ‘However, unlike California, this court has not by a series of decisions engrafted a judicial exception to the statute.’ State v. Mendoza, 104 Ariz. 395 at 398, 454 P.2d 140 at 143. Accordingly, we decline now to engage in judicial legislation. If a remedy is needed, it is for the legislature to form one.” 21 Ariz.App. at 419.

The Supreme Court in Cook,

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Cite This Page — Counsel Stack

Bluebook (online)
627 P.2d 698, 128 Ariz. 547, 1980 Ariz. App. LEXIS 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sanchez-arizctapp-1980.